Trump’s Crazy Choices for the Courts

By Shira A. Scheindlin

Nov. 9, 2017

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CreditCreditMark Pernice

Many have argued that President Trump’s biggest success has been Justice Neil Gorsuch’s ascension to the Supreme Court. While it was a major victory, Mr. Trump’s troubling nominations to the lower courts may be his most lasting legacy.

Every president selects judges whose legal, social and political views generally reflect his own. Conservatives complained about President Barack Obama’s choices, as did liberals about President George W. Bush’s, but most of them were accepted across the aisle as credible and qualified. Some of President Trump’s nominees, however, are so far outside the mainstream that even conservative Republicans like Senators John Kennedy of Louisiana and John Cornyn of Texas have expressed dismay.

There are 145 vacancies in the federal judiciary, with 18 of those on the Courts of Appeals, and more will surely arise. The Republican-controlled Senate has swiftly confirmed 12 nominees so far. And thanks to life tenure, most of them will serve for decades.

Consider some of the least qualified and most bizarre of his selections.

Leonard Steven Grasz, a nominee for the Eighth Circuit Court of Appeals, which is based in St. Louis, received a rare “not qualified” rating from the American Bar Association because his “temperament issues, particularly bias and lack of open-mindedness, were problematic.” He serves on the board of an organization that has supported the closing of clinics offering women reproductive care, has condemned Supreme Court decisions that protect women’s rights, and has asserted that abortions put women’s lives at risk.

Mr. Grasz, a lawyer in Omaha, has supported “conversion therapy” for gay youth and legislation that would allow employers to discriminate against gay employees under the guise of religious liberty. To Mr. Grasz, marriage equality is a “threat” and evolution should be taught as a theory, not as a fact.

Thomas A. Farr has been nominated to serve on the United States District Court for the Eastern District of North Carolina. President Bush recommended him for the same seat in 2006, but the Senate Judiciary Committee did not even advance his nomination to the full Senate, probably because of his longstanding ties to racist politicians, and because of his opposition to voting rights, workers’ rights and economic equality. Nothing has changed since then. Mr. Farr, a lawyer in Raleigh, was instrumental in creating and defending North Carolina’s notorious 2013 voter suppression law, which the Fourth Circuit Court of Appeals found had targeted black voters with “almost surgical precision.”

Damien Schiff, a lawyer for the libertarian Pacific Legal Foundation, was nominated to the Court of Federal Claims, which primarily hears suits seeking damages from the government. He has called the Supreme Court justice Anthony Kennedy a “judicial prostitute” because of his role as a swing voter. He also attacked the Supreme Court’s opinion in Grutter v. Bollinger, permitting race to be a consideration in college admissions to further diversity; he said it was akin to the court’s rulings in the Dred Scott decision (upholding fugitive slave laws), Plessy v. Ferguson (upholding states’ rights to require racially segregated public accommodations) and Korematsu v. United States (approving the internment of Japanese-Americans during World War II).

There are many others I could describe. The District Court nominee Jeff Mateer described transgender children as part of “Satan’s plan.” Another District Court nominee, Mark Norris, suggested that being Muslim is synonymous with being a terrorist. He also led efforts to prohibit communities from removing Confederate monuments in public places.

And then there are those who have already been confirmed, overwhelmingly along party lines. John Bush (confirmed 51-47) will sit on the Sixth Circuit Court of Appeals in Cincinnati. While blogging under a pseudonym in 2008, he compared the Dred Scott decision to Roe v. Wade, saying that both “relied on similar reasoning and activist justices” and that “slavery and abortion” are the “two greatest tragedies in our country.” On his Senate Judiciary Committee questionnaire he failed to disclose that he belonged to a social club that, for years, had excluded African-Americans, women and Jews.

Amy Coney Barrett, one of Mr. Trump’s few female nominees, has been confirmed (55-43) for a seat on the Seventh Circuit Court of Appeals in Chicago. In a 1998 article, she criticized the Supreme Court justice William Brennan for saying that his oath to uphold the law trumped any obligation to his Roman Catholic faith.

She has also stated that judges need not adhere to precedent if they believe a case was wrongly decided. But our courts have always accepted the rule of “stare decisis,” which requires that judges respect and are bound by precedent unless and until revised by the Supreme Court. A Notre Dame law professor, Ms. Barrett opposes abortion rights. She is also against the idea that an employer should be required to provide contraception coverage, signing a letter that called it “a grave violation of religious freedom.”

These judges and nominees do not reflect mainstream traditions and values. They have demonstrated a willingness to overturn longstanding judicial decisions that a vast majority of the country now accepts as the law of the land. But President Trump has delivered — at least to his base. Unfortunately, the rest of us must also live with the decisions these judges will render for decades to come.

Shira A. Scheindlin, a former Federal District Court judge, is on the board of the Lawyers Committee for Civil Rights Under Law.